Since I last wrote about the Perry v. Schwarzenegger case in July 2011,1 all of the issues before the courts at that time have been decided, and we now have these issues returning to the Ninth Circuit for resolution at the appellate level. What follows is a rundown on the issues covered before and the new developments that have occurred since I last wrote on these cases.
The issue of standing – and whether a ballot proponent would have it in a federal appellate court when the governor and attorney general decline to appeal – had been briefed, argued and then sent to the California Supreme Court as a certified question. On November 17, 2011, the court unanimously answered that question in the affirmative, but only as to an initiative proponent’s standing to assert the state’s interest when the state officials decline to do so.2 The court declined to answer whether proponents have a particularized interest that grants them standing for appeal. This duck on the particularized interest issue seems to put us right back where we started, and may lead to at least one interesting decision on this issue. The City and County of San Francisco filed a supplemental brief in the Ninth Circuit arguing that if proponents do have standing to represent the state’s interest, then their arguments should be limited to those consistent with the state constitution (i.e. they cannot argue for the favored status of one group over another in issues of procreation and child-rearing).3 This argument points out a critical reason why standing to represent the state’s interest may not be sufficient for federal appeals. Basically, state officials are sworn to uphold the constitutions of California and of the United States, a restriction that does not apply to initiative proponents. The appellate court may decide if the proponents’ arguments pass U.S. Constitutional muster, but if the substance of the merits violates the California Constitution, we may be back in the state Supreme Court again, relitigating this particular issue. Or we could have the Ninth Circuit decide that the proponents have not met the burden of showing a particularized interest as required for standing and dismiss the appeal before a decision is made on the merits. One court-watcher I know, however, anticipates that Judge Reinhardt (the most reliably liberal of the three-judge panel) wants to decide the issue on the merits so that the case can go before the Supreme Court of the United States. But SCOTUS has not been one to shy away from deciding cases regarding controversial substantive issues based on procedural defects.4
Prop. 8 proponents were handed two setbacks in the district court that have now become issues in the Ninth Circuit. As previously reported, the Hon. James Ware denied a motion to set aside the verdict issued by the Hon. Vaughn R. Walker, which argued that Judge Walker had a substantial nonpecuniary interest in the outcome of the case because he was in a long-term same-sex relationship. Additionally, Judge Ware ordered the release of the recordings of the district court trial to the public.5 However, Riverside attorneys had already had a glimpse of some of the trial footage when Judge Walker presented a lecture on “Cameras in the Courtroom” on March 8, 2011 to the Inland Empire branch of the Federal Bar Association. These two issues have already been briefed, and oral arguments were held on December 8, 2011, so a decision is forthcoming. Until the next update, you can track changes on the courts’ websites; most of them have direct links to filings in these cases because of the high level of public interest.
